Dictatorship: What Those Secret Memos Tell Us About the Bush White House

Posted by Steve Benen, Washington Monthly at 6:45 AM on March 3, 2009.

We continue to learn about how far Bush, Cheney, and their team of "creative" lawyers were willing to push the legal envelope.

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Bush, Cheney, and their team of "creative" lawyers are, to the benefit of the rule of law and our constitutional system, no longer running the executive branch. But we continue to learn about just how far these guys were willing to push the legal envelope.

The secret legal opinions issued by Bush administration lawyers after the Sept. 11 attacks included assertions that the president could use the nation's military within the United States to combat terrorism suspects and to conduct raids without obtaining search warrants.

That opinion was among nine that were disclosed publicly for the first time Monday by the Justice Department, in what the Obama administration portrayed as a step toward greater transparency.

The opinions reflected a broad interpretation of presidential authority, asserting as well that the president could unilaterally abrogate foreign treaties, ignore any guidance from Congress in dealing with detainees suspected of terrorism, and conduct a program of domestic eavesdropping without warrants.

We've had some sense of this before, but the newly-released materials point to legal excesses that were "far greater than previously known," and when taken together, are "the clearest illustration to date of the broad definition of presidential power approved by government lawyers in the months after the Sept. 11 attacks."

And by "broad definition," we're talking about Bush's authority to do pretty much anything he pleased.

For quite a while, Yoo, Bybee, & Co. believed the "war on terror" trumped the Fourth Amendment. What's more, the First Amendment "may also be subordinated to the overriding need to wage war successfully." Posse Comitatus isn't mandatory. Congress has no authority to address federal detention policies. FISA doesn't necessarily apply to national security considerations.

In the very final week of Bush's presidency, Steven Bradbury, the then-principal deputy assistant attorney general issued his own memo explaining that the previous legal documents crafted by Yoo and other administration attorneys "should not be treated as authoritative for any purpose." With that, Bradbury retracted nine opinions from Bush's first term.

Yesterday, just a few hours before the Bush-era memos were released, Attorney General Eric Holder noted, "Too often over the past decade, the fight against terrorism has been viewed as a zero-sum battle with our civil liberties. Not only is that thought misguided, I fear that in actuality it does more harm than good."

Here's hoping the Obama administration takes this to heart, and does far more to distance themselves from the abhorrent ideas that the president's predecessor embraced for far too long.

Tagged as: bush, cheney, rule of law, secret memos, illegal, classified memos

Steve Benen is "blogger in chief" of the popular Washington Monthly online blog, Political Animal. His background includes publishing The Carpetbagger Report, and writing for a variety of publications, including Talking Points Memo, The American Prospect, the Huffington Post, and The Guardian. He has also appeared on NPR's "Talk of the Nation," MSNBC's "Rachel Maddow Show," Air America Radio's "Sam Seder Show," and XM Radio's "POTUS '08."